The leader of Colorado’s sheriff association says two memos released by the Department of Homeland Security Tuesday clarifying President Donald Trump’s recent immigration orders aren’t likely to affect local enforcement of federal immigration law here.
“That really has no impact in Colorado,” Chris Johnson, executive director of County Sheriffs of Colorado, said of DHS Secretary John Kelly’s memos, which describe a plan to increase cooperation between local law enforcement and Immigration and Customs Enforcement, or ICE. “They’re only going to do that along the border states; I would assume that they’re not going to pursue that in Colorado.”
Johnson is referring specifically to a program called 287(g), a section of federal law which deputizes sheriffs and local police officers to perform the work of federal immigration authorities. Participating officers undergo a federal training program and are authorized to arrest and detain undocumented immigrants in their jurisdictions.
In his executive orders, Trump wrote that Homeland Security “shall take appropriate action, through agreements under section 287(g)…to authorize State and local law enforcement officials to perform the functions of immigration officers in relation to the investigation, apprehension, or detention of aliens in the United States…”
These orders did not target specific states, but one of Kelly’s memos contained a section called “Expansion of the 287(g) Program in the Border Region.” Because Colorado is not a border state, Johnson said he does not believe the order will apply to Colorado, a conclusion some immigration attorneys do not necessarily share. Johnson called the 287(g) program, which does not reimburse sheriffs for participation, “an expensive program for a sheriff’s office to run.” No Colorado sheriffs currently participate.
El Paso County was the last sheriff’s department in the state to help with ICE enforcement. In May 2015, the department released a memo officially ending its participation in 287(g). The memo cited existing critiques of the program, such as that “it lacked proper Federal oversight, exhausted local resources and ultimately, resulted in the profiling of undocumented immigrants.” The department concluded that “the program duplicates efforts of Immigration and Customs Enforcement (ICE).”
Janet Huffor, the chief of staff for the El Paso County sheriff’s department, says that’s not going to change. “No, we are not interested in reinstating the 287(g) program — we don’t have plans to,” she said, citing concerns about both cost and manpower. El Paso does have an intergovernmental agreement with ICE and communicates with the agency, as do many Colorado counties.
Immigration attorney James Lamb told The Colorado Independent that he isn’t convinced Colorado isn’t included in the 287(g) expansion, and that the broad language of both the orders and the memos made it unclear whether border states are the only targets. “It said they were trying to get 287(g) agreements with any willing jurisdiction. Why would they limit themselves [to border states]? They didn’t in the past,” he said.
Lamb also noted that 287(g) agreements have “never been mandatory,” but said he could imagine Trump using non-participation in the program as criteria to determine so-called “sanctuary cities.” The highly politicized term has no legal definition, but Trump’s executive order has threatened to withhold federal grant money from sanctuary jurisdictions.
To Lamb and others who practice immigration law, the expansion of the 287(g) program is far from the most worrying part of Secretary Kelly’s memos. Topping that list? DHS’ apparent plan to “virtually cut off” advanced parole grants, which give certain undocumented immigrants permission to re-enter the U.S. after traveling abroad, including recipients of the Deferred Action for Childhood Arrivals program (DACA) and those who have pending applications for immigration status. Severely limiting the practice would essentially “restrict travel for whole groups of people,” said Lamb.
He also fears the expansion of expedited removal. In the past, immigrants who were caught by ICE authorities within two weeks of entering the country and within 150 miles of the border were exempt from the right to an attorney, and could be deported quickly and without trial. Kelly’s memos have expanded that window to include anyone across the U.S. and within two years of entry.
Despite these fears, Lamb says, Colorado’s legal community is mobilizing for action.
“We’ll file our lawsuits, we’ll sue the government on due process grounds when that applies,” he said. “We’ll do what we can.”
As a rule, Colorado sheriffs no longer comply with federal “detainer orders,” which request that law enforcement detain suspected undocumented immigrants beyond their release dates in order for ICE to pick them up. But across the state, sheriff’s have varying policies towards communicating with ICE about those in their custody. Check out the above map to learn more about the communication policies of Colorado’s sheriffs.
Photo credit: Ted Eytan, Creative Commons, Flickr